The ACLJ Prepares To Take Action To Advance Justice and Prevent Widespread Educational Failures During the Pandemic | American Center for Law and Justice
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Preventing Widespread Educational Failures During the Pandemic

By Harry G. Hutchison1595260173108

Public schools, led by progressive politicians, Boards of Education, and left-wing teachers union leaders, continue to fail and thus yield poorer and poorer outcomes in terms of safety, graduation rates, and parental satisfaction than schools of choice. This pattern has been exacerbated by the Coronavirus pandemic.

This pattern of failure evokes memories of school segregation and the days of “separate but equal” discrimination in the period before the Supreme Court’s decision in Brown v. Board of Education, as current public officials, prompted by the perceived health risk, have shut down schools while persistently failing to offer effective alternative solutions to students in disadvantaged areas of the country.

As school districts decline to reopen, teachers unions, apparently fearful of competition, have responded by demanding that states shut down virtual learning opportunities provided by public charter schools. In Oregon for instance, evidently bowing to pressure from left-wing teachers unions, Governor Brown has effectively shut down online charter education, issuing an order that “closed all public charter schools as defined in ORS 338.005(2). . . . This definition includes virtual public charter schools.”

This astonishing failure of leadership constitutes a willful act of deprivation of education as part of a vindictive move that indicates that teachers union leaders and other left-wingers (including public school officials) are terrified by the prospect of competition from online charter schools. This crabbed maneuver by the progressive governor of Oregon and the state’s bureaucrats seems designed to sacrifice students’ education for the governor’s political self-interest while remaining oblivious to the fact that virtual learning aids the state’s efforts to ensure proper social distancing during a pandemic.

At the same time, it is not debatable that a good education effectively alleviates poverty and disadvantage. Attesting to the power of good education, the number of African Americans in professional, technical, and similarly high-level occupations more than doubled between 1954 and 1964. These results—cataloged in Thomas Sowell’s book, The Economics and Politics of Race: An International Perspective (see pages 199-200)—signify that educational achievement is the most decisive factor in advancing the level of economic advancement of members of minority groups and indeed, advancing the economic standing of all Americans. Sowell shows that by 1980, college-educated black couples were earning more than college-educated white couples (see page 201).

Perhaps deliberately blind to such research and woefully unwilling to accept the encouraging results attainable through school choice initiatives, many school districts are ill-equipped or unprepared to think creatively and develop outside-of-the box remedies. This failure sets up minority and disadvantaged children for disaster even when and where remote learning is available. So far, the evidence shows that remote learning widens the education gap that was already in place before public schools shut down.

While it is clear that school districts must weigh the potential public health risk of bringing students into classrooms, they must also consider the shortcomings of remote-learning programs which schools rolled out in the Spring of this year with generally dismal results.

In the United States, a quality education should not be a privilege reserved for some, but a right guaranteed to all. As New York’s highest court has noted, “by mandating a school system ‘wherein all the children of this state may be educated,’ the State has obligated itself constitutionally to ensure the availability of a ‘sound basic education’ to all its children.” CFE, Inc. v. New York, 100 N.Y.2d 893, 902 (2003) (quoting CFE, Inc. v. New York, 86 N.Y.2d 307, 314 (1995)). Ensuring that availability means the government must ensure that “public schools are able to teach ‘the basic literacy, calculating, and verbal skills necessary to enable children to eventually function productively as civic participants capable of voting and serving on a jury.”’ CFE, Inc. v. New York, 8 N.Y.3d 14, 20 (2006) (quoting 86 N.Y.2d at 316). If this analysis is sound, a similar responsibility and obligation may be imposed either by state law or a state’s constitution in other jurisdictions.

States and school districts should take effective steps to enable the education of all children, mitigate the educational deficiencies and gaps that prevent many school-age children from being educated properly, and finally ensure that the education achieved provides students with the opportunity to attain the basic literacy, calculating, and verbal capacity necessary for responsible citizenship. Failure to properly educate school children, particularly in some districts, constitutes a willful or inadvertent effort to ensure a disastrous future for many students.

This unconscionable failure of leadership, and this appalling move to disenfranchise the disadvantaged among us, cannot be allowed to stand. This is particularly true since school districts continue to collect, and residents are compelled to pay, federal, state, and local taxes to deliver education.

In addition, taxpayer funds are also available, in some cases, to provide food through federal school lunch programs. The National School Lunch Program (NSLP), for example, is a federally assisted meal program operating in public and nonprofit private schools and residential childcare institutions. It provides nutritionally balanced, low-cost, or free lunches to children each school day. The program that was established under the National School Lunch Act, and signed into law by President Harry Truman in 1946, has partnered with private entities to deliver millions of meals to low-income kids across America during the COVID-19 health crisis.

At the same time, virtually each and every day brings news that schools districts within such cities as Los Angeles, San Diego, or New York City are planning to block school-age children from returning to school in the Fall or are planning to offer reduced hours of operation. Not all school districts have engaged in sufficient thinking outside-of-the-box that is designed to accommodate the needs of all of the school-age children in America.

Although children have an inherent right to an education, not every school-age kid has access to the Internet, to a computer or tablet, or even electricity, all of which are necessary to learn in the 21st century. How are such children to be educated and accommodated in a time of a pandemic? Addressing this issue—and illustrating an example of outside-the-box thinking—this past April, the Detroit Public Schools, along with private groups such as General Motors, announced the creation of the Connected Futures program to tackle the problem that 90% of Detroit K-12 public school students lack adequate electronic devices and Internet connectivity. This “digital divide” prevents students from participating in online learning, especially during the pandemic. Through this public/private program, 51,000 public school students will receive free devices and Internet access for in-home use as the school system expands virtual instruction along with in-person instruction this Fall.

In addition to the apparent disadvantages grounded in access to satisfactory educational tools including the Internet, other students have disabilities that must be accommodated consistent with the Individuals with Disabilities Education Act (IDEA), a federal law that supports special education and related service programming for children and youth with disabilities.

While public education continues its downward skid, and while the radical Left continues its assault on American values, including basic educational competence, we at the ACLJ believe that school choice—vouchers and charter schools—tend to increase parental satisfaction and involvement, improve student safety, make public schools more accountable, and lead to higher graduation rates.

We also believe in the value of thinking “outside the box.” The ACLJ has been at the forefront of expanding choice, and advancing justice within America’s educational system. As part of this effort, we encourage parents to work with their local school boards to think outside the box in order to ensure a quality education for all, and second, the ACLJ is prepared to litigate, if necessary, in order to advance justice.

Consistent with our efforts to advance parental collaboration with school districts, we are preparing to send demand letters to school districts on behalf of our clients, demanding that they provide accommodations and aid designed to eliminate the educational deficiencies that have existed and will continue during this pandemic. Second, on the litigation front, our legal team is actively researching a number of legal avenues calculated to achieve justice and eliminate existing educational deficiencies. Possible causes of action include:

(A) First and foremost, consistent with the New York cases cited above—though this type of action may differ from state to state—the ACLJ is determining whether a state may be sued for not having an appropriate state finance system that ensures that it fulfills its constitutional requirements of providing for a child’s basic educational needs; this may involve a suit tied to the necessity of vouchers in order to make education equal again for all students, regardless of their families’ economic circumstances;

(B) Second, when and if school districts fail to provide alternative access to education particularly for disadvantaged kids, we are exploring Equal Protection claims predicated on unequal access to education, which challenges any attempt to return to the days of “separate but equal” education outlawed by the United States Supreme Court in Brown v. Board of Education;

(C) Third, in response to a number of parents who have already contacted the ACLJ’s legal intake office, we are rigorously reviewing the possibility of initiating litigation challenging a school district’s failure to provide disabled students with access to educational assistance consistent with the IDEA;

(D) Fourth, the ACLJ is examining the feasibility of litigation that challenges the unconscionable decision by the governor of Oregon to deny students access to virtual charter schools; and

(E) Fifth and finally, the ACLJ is researching the plausibility of litigation that challenges compliance efforts including the failure of states’ and school districts’ lunch programs to operate consistently with their obligations under applicable laws.

As we continue to explore these legal options, it is plainly obvious that we cannot allow school boards to prioritize the demands of teachers unions or politicians and thus hold students hostage to their own failures. Instead, it is time to put the needs of students first.

The ACLJ will continue to advance justice by advancing efforts to eliminate public school deficiencies and by improving school choice options. We will not leave states and school districts unchallenged when adducible evidence shows that they have foregone opportunities to advance education for all school-age children. Consistent with our belief that elementary fairness and simple justice demands improved performance for all of America’s school-age kids—even in a time of a pandemic—the ACLJ is ready to take substantive action.

With that in mind, if you are a parent or legal guardian of a child currently enrolled in the public school system, the school district’s plan requires part or full-time distance learning, and this plan will pose a significant hardship for you/your family, we would like to hear from you at

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